Major law firm opposes new rules that could ban the Bay View from all California prisons

This letter, from attorney Leila Knox of Bryan Cave LLP, one of the world’s largest law firms, was emailed and mailed on July 13, 2014, to Regulation and Policy Management Chief Timothy M. Lockwood, California Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, Calif. 94283-0001. Readers are encouraged to submit their own comments from their own perspective. Comments are being accepted until Tuesday, June 17, at 5 p.m., and can be easily submitted until that time at attorneykennugent.com. at http://prisonerhungerstrikesolidarity.wordpress.com/. Learn more at https://www.facebook.com/FightPrisonCensorship.

Re: Comments on CDCR’s Proposed Regulations: Obscene Material

Dear Mr. Lockwood:

On behalf of the San Francisco Bay View National Black Newspaper (“Bay View”), we make this submission in response to the invitation for comments on the California Department of Corrections and Rehabilitation’s (“CDCR”) Proposed Regulations relating to Obscene Material (“Proposed Regulations”).

The Proposed Regulations include ostensibly minor revisions that could be used to work a fundamental change that would severely burden the First Amendment rights of both inmates in CDCR facilities and innocent third parties who wish to communicate with them. While the Proposed Regulations purport to create uniform statewide policies regarding “obscene materials,” the regulations reach far beyond and threaten to ban political speech and/or speech that is critical of the California prison system through the prohibition of materials or publications that “indicate an association with groups that are oppositional to authority and society.” Initial Statement of Reasons; Obscene Material Regulations (“ISOR”) 3-25-14 at 4.

Under this regulatory scheme, publications such as the Bay View could be impermissibly banned from within state prisons.[1] At best, the Proposed Regulations banning “written materials or photographs that indicate an association with validated STG [Security Threat Group] members or associates” as contraband (Proposed Regulations, 15 CCR § 3006(c)(19)) are confusingly vague and overbroad without serving any meaningful function. At worst, the proposed regulations could serve as a pretext to limit prisoners’ access to informative news publications like the Bay View – publications that enjoy the full protection of the First Amendment.

Under this regulatory scheme, publications such as the Bay View could be impermissibly banned from within state prisons.

I. About the San Francisco Bay View Newspaper

The Bay View newspaper, founded in 1976, is a source for news and information for the black community worldwide. The print edition of the Bay View is mailed to subscribers both in California and across the country, including hundreds of prisoner subscribers. Its website, available at www.sfbayview.com, is the second most visited black newspaper on the web. The Bay View and its editors and reporters have won numerous awards for news reporting, including awards for Excellence in Journalism and Freedom of Information from the Society of Professional Journalists (1996 and 2004, respectively); three “Best of the Bay” awards from the Bay Guardian (1998, 2003 and 2009); National Black Newspaper of the Year from the National Black Chamber of Commerce (1997); and Best Community Newspaper from the Media Alliance (2001).

The Bay View provides thought-provoking stories and commentary, with a particular focus on the black community. As with any community newspaper, news stories and commentary range from coverage of the economy, politics and current events to the arts, education, history, health and religion. In addition, the Bay View provides in-depth coverage of both the California penal system and penal systems located in other states. Featured articles in this section might include commentary on the conditions of solitary confinement or a discussion of court orders staying executions. Stories in the Bay View are written by reporters both from within and outside the penal system.

II. Bay View’s Understanding of the Proposed Regulations

The Proposed Regulations ostensibly relate to “Obscene Material,” stating they will “clarify Department regulations concerning contraband as obscene material, ensuring compliance with statute concerning the established standard for obscene material.” Notice of Proposed Regulatory Action at 2. The labeling of these regulations as only affecting “Obscene Material” is misleading, however, since the regulations would also create new categories of contraband material by prohibiting “written material or photographs that indicate an association with validated STG members or associates.” For example, a broad category of “STG recruitment material” would be disallowed in the institutions and listed on the Centralized List of Disapproved Publications, and the regulations would also disallow written materials or photographs that “indicate an association with” validated STG members or associates. Proposed Regulations, Title 15, Division 3, Article 1, §§ 3006(c)(19); 3134.1(e); 3135(c)(14). Given the lack of any clear definition in the regulations of the term “publication,” it is conceivable that these Proposed Regulations would not only be used to permanently exclude a particular issue of a newspaper such as the Bay View, but permanently ban the newspaper altogether from California state prisons.

The labeling of these regulations as only affecting “Obscene Material” is misleading, since the regulations would also create new categories of contraband material by prohibiting “written material or photographs that indicate an association with validated STG members or associates.”

Existing CDCR regulations provide mechanisms for prison officials to control and limit prisoners’ correspondence and to monitor those communications to detect and prevent possible criminal activity, while acknowledging that mail to prisoners cannot be disallowed based on “disagreement with the sender’s or receiver’s morals, values, attitudes, veracity or choice of words.” 15 CCR § 3135(b). The Notice of Proposed Regulatory Action offers no explanation why these existing methods do not fully accommodate legitimate security needs. The Proposed Regulations will only work to limit and/or completely restrict – on a system-wide basis – prisoners’ access to publications – such as the Bay View – that clearly fall within the protection of the First Amendment.

III. The Proposed Regulations Impermissibly Burden the First Amendment Rights of Publishers Who Wish to Communicate With Prisoners

At the outset it must be clearly understood that the Proposed Regulations severely burden the First Amendment rights of innocent third parties by allowing CDCR to bar publishers like the Bay View from communicating with prisoners. The Supreme Court has long recognized that restrictions on prisoners’ communications implicate the First Amendment rights of those free persons who wish to communicate with them: “Whatever the status of a prisoner’s claim to uncensored correspondence with an outsider, it is plain that the latter’s interest is grounded in the First Amendment’s guarantee of freedom of speech.” Procunier v. Martinez, 416 U.S. 396, 408-409 (1974), overruled in part on other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989). The First and Fourteenth Amendment rights of those who are not prisoners are inextricably meshed with those that they wish to communicate with. Procunier 416 U.S. at 408-409. “When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.” Id. at 405-06. Publishers therefore have a constitutional right to distribute their publications to prisoner subscribers, and have standing to challenge a prison’s action to block such distribution. See Prison Legal News v. Cook (“PLN I”), 238 F.3d 1145, 1149 (9th Cir. 2001).

The Proposed Regulations severely burden the First Amendment rights of innocent third parties by allowing CDCR to bar publishers like the Bay View from communicating with prisoners. Publishers have a constitutional right to distribute their publications to prisoner subscribers, and have standing to challenge a prison’s action to block such distribution.

Courts have repeatedly recognized the important First and Fourteenth Amendment rights of publishers to communicate with inmates, and the Ninth Circuit has repeatedly struck down regulations prohibiting or limiting the distribution of publications to prisoners as unconstitutional. See Crofton v. Roe, 170 F.3d 957, 960-61 (9th Cir. 1999) (striking down regulation that prohibited a prisoner from receiving a gift book from his stepfather); PLN I, 238 F.3d at 1148 (striking down a regulation that prohibited bulk-rate nonprofit subscription publications as unconstitutional as applied to the non-profit Prison Legal News); Morrison v. Hall, 261 F.3d 896, 903 (9th Cir. 2001) (extending PLN I to for-profit publications); Prison Legal News v. Lehman (“PLN II”), 397 F.3d 692, 699-700 (9th Cir. 2005) (striking down ban on bulk mail given there was “no rational relation between this regulation and the penological objective of reducing the amount of mail that may contain contraband”).

Under Supreme Court and Ninth Circuit precedent, the CDCR’s Proposed Regulations that would effectively burden the rights of publishers to communicate with inmates would not pass the stringent constitutional inquiry dictated by this line of cases. Rather, in prohibiting materials that “indicate an association with validated STG members or associates,” the Proposed Regulations would fail because they are both vague and overbroad. As such, they should not be adopted.

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). First, a law is unconstitutional for vagueness if it does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Id. Second, laws must not be vague so as to avoid “arbitrary and discriminatory application.” Id. Third, vague laws are unconstitutional for where they potentially prohibit permissible acts, they have a chilling effect on lawful conduct. Id. A law is unconstitutionally vague if it prohibits protected conduct, Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (finding unconstitutionally vague a law prohibiting speech “annoying to persons passing by”), or if it allows for punishment of speech that is merely unpopular, Cox v. State of La., 379 U.S. 536, 551 (1965)(finding unconstitutionally vague a law prohibiting speech “with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned”).

The proposed regulations are unjustifiably vague because the term “indicate an association with” does not “give the person of ordinary intelligence a reasonable opportunity so that he may act accordingly.” Grayned, 408 U.S. at 108-09. To put it another way, the term “indicate an association with” in the Proposed Regulations, 15 CCR §§ 3006(c)(19), 3135(c)(14), contains no meaningful standard. In light of the CDCR’s past dealings validating inmates as STG members based on their reading materials, including possession of the writings of political activist and prisoner George Jackson, the vagueness of the regulation is particularly troubling. Such vague, standardless language invites arbitrary, inconsistent, and discriminatory application of the regulation.

In light of the CDCR’s past dealings validating inmates as STG members based on their reading materials, including possession of the writings of political activist and prisoner George Jackson, the vagueness of the regulation is particularly troubling.

B. The Proposed Regulations are Overbroad and Will Chill Speech Within the First Amendment’s Vast and Privileged Sphere

“The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Overbroad speech restrictions are invalid because they may deter protected speech. In addition to the problems with the vague and standardless criteria, the proposed regulation is overbroad and allows for permanent disallowance of protected speech once a publication has been included on the Centralized List of Disapproved Publications.

The regulation is impermissibly overbroad given a “publication,” which could mean either a single issue of a particular periodical or all future issues of that “publication,” could be permanently disallowed over a single article in a single edition of that publication. In other words, a particular publication, such as the Bay View, could be permanently banned from distribution to inmates in all California state prisons and placed on the Centralized List of Disapproved Publications based on an unfounded concern that a particular article in a particular issue somehow “indicates” an association with an STG. The Proposed Regulations could, and almost certainly will, “disallow” far more speech than is otherwise permissible under the First Amendment.

The Bay View could be permanently banned from distribution to inmates in all California state prisons and placed on the Centralized List of Disapproved Publications based on an unfounded concern that a particular article in a particular issue somehow “indicates” an association with an STG.

C. The Proposed Regulations Are Not Aligned With the Values of Our Corrections System

The chilling effect on speech by the prison’s Proposed Regulations is not a mere specter, but already a concrete reality. The Bay View has recently received letters from inmates who have been long-time subscribers cancelling their subscriptions to the Bay View because of fear that the prison will use their possession of the Bay View publication to justify validating them as a gang or STG member or associate, or otherwise retaliating against them.

Policies that punish prisoners for vague gang affiliation based on artwork, literature, communications, photographs, or publications not only severely and impermissibly burden vital Constitutional rights, but also create unjust, ineffective, and expensive policies. Punishing people for unpopular thoughts or seeking information on disfavored ideas, rather than their own acts of misconduct, is anathema to the principles of our society, our legal system, and our Constitution.

Punishing people for unpopular thoughts or seeking information on disfavored ideas, rather than their own acts of misconduct, is anathema to the principles of our society, our legal system, and our Constitution.

IV. The Proposed Regulations Fail To Meet the Stated Objective and Appear Disingenuous

The proposed regulations purportedly merely clarify existing regulations related to obscene sexually explicit materials. However, embedded in the proposed regulations are new prohibitions that may implicate protected political speech. CDCR’s stated objective in proposing these regulations is to “clarify Department regulations concerning contraband as obscene material, ensuring compliance with statute concerning the established standard for obscene material. The specific benefits anticipated with these regulations include greater transparency in business and government, preventing discrimination, promoting fairness and social equality, and improved worker safety.” Notice of Proposed Regulatory Action: Informative Digest/Policy Statement Overview.

CDCR’s informative digest/policy statement overview, initial statement of reasons, consideration of alternatives, benefits of the proposed regulation, and the text of the proposed regulations themselves all fail to explain how the creation of new categories of prohibited materials based on a perceived indicated association with a validated STG member or associate clarify regulations relating to definitions of obscene sexually explicit materials.

V. Conclusion

“[P]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” including the First Amendment. Beard v. Banks, 548 U.S. 521, 528 (2006); Turner v. Safley, 482 U.S. 78, 84 (1987). The Bay View’s inmate readership consists of prisoners who have subscribed to the publication and have specifically asked to receive it and is subject to the full constitutional protections that the Courts have found apply to these publications.

The Bay View’s inmate readership is subject to the full constitutional protections that the Courts have found apply to these publications.

Given the lack of any discernible benefit and the significant burdens placed on important First Amendment rights of both prisoners and those who wish to communicate with them, these proposed regulations should be withdrawn.

Sincerely,

Leila Knox

[1] Bay View’s concerns are not merely speculative. Last year, Pelican Bay State Prison prohibited prisoner subscribers from receiving the January, March, April, May, June and July 2013 editions of the Bay View newspaper, which contained articles and editorials relating to the prisoner hunger strike. While other prisons in California continued normal distribution of these editions, Bay View’s experience dealing with Pelican Bay and the Department of Adult Institutions illustrates the potential for prison administrators to use broadly worded regulations to stifle legitimate political speech.

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